In W.P. No.665 of 2023-BOM HC- Bombay HC allows assessee to file application for revocation of cancellation of registration u/s 30 of CGST Act while considering challenge against order rejecting appeal on ground of maintainability 
Justices Nitin Jamdar & Abhay Ahuja [22-03-2023]

Read Order: M/s Mohankar Timber Company Vs. The Union Of India And Ors 

LE Correspondent

Mumbai,  March 27, 2023: The Bombay High Court has observed that if the appellate authority came to a conclusion that Petitioner-assessee ought to have filed an application before the authority for revocation, then the authority should have granted an opportunity to the Petitioner to file an application under section 30 of the CGST Act.

The  Division Bench of Justice Nitin Jamdar and Justice Abhay Ahuja was considering a petition whereby the petitioner was challenging Order passed by the Commissioner of Central Tax (Appeals-II), Pune under the GST Act rejecting Petitioner's appeal as not maintainable.

The factual scenario of this case was such that the Petitioner having GSTIN registration was issued a show cause notice for cancellation of registration as Petitioner had not filed returns for a continuous period of six months. 

After considering the reply of the Petitioner, the Petitioners GSTIN registration was cancelled. An appeal was filed against the order of cancellation of GST registration under section 107 of the GST Act. By the impugned order, although the Commissioner (Appeals) found the appeal to be within the period of limitation, holding that since Petitioner did not approach the jurisdictional CGST authority for revocation of cancellation of registration under section 30 of the Act after issuance of the cancellation order as per the timelines provided under the law, rejected the appeal filed by Petitioner as not maintainable.

It was submitted from the petitioner’s side that in a few earlier decisions, in similar circumstances, the Court had granted an opportunity to the Petitioner therein to file an application before the authority under section 30 of the CGST Act.

The Bench took note of the fact that although the Commissioner (Appeals) had relied upon the suo-moto orders of the Supreme Court in respect of the limitation period considered the same and held the same to be within limitation, however, it had held that the appeal to be not maintainable as the course of action under section 30 was not adopted. 

Referring to the judgments in MSK Electricals vs. The Union of India and Others, Shri. Datta Kripa Majur Sahakari Sanstha Ltd. vs. Union of India and Others, Pragati Distributors vs. Additional Commissioner (Appeals I) and Others and Balaji Engineering Works Vs. Union of India, the Bench stated that the Court in similar circumstances has granted an opportunity to the Petitioner to file an application before the authority under section 30 of the CGST Act. 

“We agree with the observation in the earlier decisions passed in the matters referred to above that if the appellate authority came to a conclusion that Petitioner ought to have filed an application before the authority for revocation, then the authority should have granted an opportunity to the Petitioner to file an application under section 30 which the authority failed to do”, the Bench asserted.

It was noticed by the Bench that although the authority observed that the appeal was filed within time and also went to the extent of allowing the appeal, however, instead of directing the Petitioner to file an application under section 30 it had gone ahead and rejected the appeal on the ground of maintainability. 

Considering such aspects and the conspectus of the matter, the Bench afforded an opportunity to the Petitioner to file an application to the authority under section 30 of the CGST Act. 

“It is made clear that if an application is made by Petitioner within 15 days from today before the authority under section 30 of the CGST Act, the authority to consider the same and take a decision on merits as expeditiously as possible within a period of three months from today”, the Bench further ordered.